Federal Court Statistics, or: How Numbers Can Drive You Mad

Zach Lowe

The American Lawyer

As The Am Law Daily reported Thursday, we've been scouring a recently released report of all federal court statistics for the 2007 fiscal year (pdf) for trends. Mostly, we wanted to know, are civil trials disappearing?

The answer, it turns out, is tough to pin down. The first place we looked was here, which shows nearly 10,000 civil cases that went to trial in U.S. District Courts -- up from between 3,500 and 4,000 per year since 2004. We were struck by such a stunning number, so we reached out to litigation-watcher Marc Galanter at University of Wisconsin-Madison's law school -- he found it equally shocking.

So, we dug a little deeper. We scrolled all the way to page 172 of the mammoth report to find a district-by-district breakdown of all dispositions -- a table that was, for whatever reason, not included in the press release from the Administrative Office of the U.S. Courts announcing the statistics.

Look carefully at Louisiana and you'll find something startling: The middle district there saw 6,358 cases decided by trial. That's nearly two-thirds of the total number of trials reported nationwide. That anomaly, whatever it was, was skewing the entire report and making it seem as if the vanishing civil trial had returned. Take those cases away, and the number of trials stayed at about the same miserably low level it has hovered at for years -- about 1.5 percent of all dispositions.

So what happened in Louisiana? We called the court to found out, and the clerk, Nick Lorio, had our answer. Lorio told us Exxon last year won two trials linked to two separate explosions at a Baton Rouge oil refinery in the mid-1990s. Both trials focused on a half-dozen plaintiffs who represented larger classes of named plaintiffs -- about 3,000 in each case, Lorio says. The government counts each of those plaintiffs as a "trial" in its statistics.

"They are a little embarrassed by the lack of trials," Galanter says. "So they try and present the numbers in a way that shows a major increase."

It gets even more complicated. Suppose instead of clicking on our original table you went here, to a table showing the number of trials completed (pdf). You'd find a different number: 5,600, compared with the nearly 10,000 trials listed in the other table. The reason is obvious: The higher number includes cases that went to trial but were resolved before the completion of the trial. Apparently only 5,600 went to verdict.

But wait, there's more. The numbers in this new chart show about 5,100 trials completed in 2006. The 2006 numbers in the prior chart show only 3,555 cases even went to trial that year. How can that be?

The answer lies in the footnote of the new chart, which tells us the 5,100 trials include hearings on contested motions, preliminary injunctions and any "other contested proceedings in which evidence is introduced."

Thus, Galanter says, a single case can actually account for several "completed trials" under this methodology. Galanter and other say they are not sure why the government counts trials in different ways for different tables.

The lesson, as always: Be careful when reading statistics.

One other nugget was of special interest to the Am Law Daily. The numbers in this table (pdf) suggest that in 2006 and 2007, plaintiffs lawyers started filing more asbestos cases in federal courts. The plaintiffs bar has traditionally preferred the much friendlier state courts for asbestos litigation, says Steven Kazan, one of the nation's pre-eminent asbestos litigators. But in 2006, the federal bar was suddenly bogged down with more than 16,000 asbestos cases -- up from about 1,350 per year for the previous three years.

Kazan says he's not surprised asbestos litigation plummeted earlier this decade, when screening processes came under scrutiny and Congress considered setting up a trust system to pay victims -- legislation the plaintiffs bar and an ally named Joe Biden fought hard against. But the uptick in federal cases surprised Kazan and others.

"I can't believe it's actually happening," Kazan says. "It could be some statistical anomaly."

Ron Miller, a vice president and torts litigation expert at NERA Economic Consulting, says most asbestos litigation still resides in state courts. But he said the uptick in federal filings "may represent a change in strategy among the plaintiffs bar."